The Convention shrank from the insertion of a bill of rights in the Const.i.tution because, as was subsequently explained, it was feared that it might bring up the subject of slavery, one member insisting that it should contain a declaration against slavery, and another that it should specifically declare that it did not extend to slaves. Accordingly the committee did not incorporate this declaration of right in their draught. But it is set forth in the Observations; and on the 20th of August Pinckney proposed in the Convention a stronger and more explicit provision.

These provisions, therefore, are sustained by the public, contemporaneous avowal of Pinckney that they were in the draught which he had prepared for the use of the Convention; and by the recorded facts that when he found that the committee had not considered them as within their jurisdiction and had not incorporated them in their draught he brought them before the Convention and sought to have them inserted in the Const.i.tution. As it is certain that the ideas were his, and that he formulated them into provisions substantially identical with those in the State Department draught, at the time when the Convention was considering the respective subjects, it requires very little additional a.s.surance to make us accept them as a part of the draught presented to the Convention.

Conversely, there are provisions which may have been in the draught presented to the Convention, but which are not in the draught filed in the State Department. The most notable of these is the one relating to patents and copyright. Pinckney says in the Observations "There is also an authority to the national legislature" "to secure to authors the exclusive right to their performances and discoveries;" and on the 18th of August he moved in the Convention to insert among other powers "To grant patents for useful inventions."

If the provision was in the original draught, the Committee of Detail were not authorized to adopt it and did not; but the Convention did and it became a part of the Const.i.tution. Pinckney was constantly nursing his draught, revising, amending, rearranging, and it is not improbable that he inserted this provision in one copy and neglected to insert it in the others. But he certainty seems to have been the author of it.

From one point of view it may seem a needless Const.i.tutional provision; for a national legislature could so legislate without it. But under the British Const.i.tution monopolies were a prerogative of the Crown, and a patent was deemed a monopoly. Pinckney therefore did wisely in expressly a.s.signing patent-rights and copyrights to the legislative branch of the Government, giving to the mind-work of the inventor or author the character of property and the safeguard of the law.

Another provision is the compromise relating to slave representation. In the State Department draught it is provided that the number of the delegates shall be regulated "by the number of inhabitants" (Art. 3) and that "the proportion of direct taxation shall be regulated by the whole number of inhabitants of every description." In the Observations he says that his plan contains a provision "for empowering Congress to levy taxes upon the States, agreeable to the rule now in use, an enumeration of the white inhabitants, and three-fifths of other descriptions." In the Convention on the 12th of July, "Mr. Pinckney moved to amend Mr.

Randolph's motion so as to make 'blacks equal to the whites in the ratio of representation.' This he urged was nothing more than justice. The blacks are the labourers, the peasants of the Southern States: they are as productive of pecuniary resources as those of the Northern States.

They add equally to the wealth, and, considering money as the sinews of war, to the strength of the nation. It will also be politic with regard to the Northern States, as taxation is to keep pace with Representation."

This is conclusive as to Pinckney's views. It confirms the draught in the State Department and shows too that the copy of the draught on which the Observations were founded differed in this detail from the draught presented to the Convention.

On a review of the entire case I have reached the following conclusions:

1. The draught in the State Department agrees so closely with the draught of the Committee of Detail, in form, in phraseology, in structure, in arrangement, in extent, in its beginning and its ending that unquestionably the one draught must have followed the other. There can be no middle ground here.

2. With the uncovering of the Committee's draught and the bringing of the Observations into the case and the confirmatory matter in the Randolph and Wilson draughts, it becomes evident that the suspected fraud was an impossibility. That is to say, when Pinckney described in the Observations the draught which he was subsequently to present to the Convention he thereby described the draught which he was ultimately to place in the Department of State. In a word, if a fraud was perpetrated in 1818, it must have been begun in 1787, before the Convention met, which is a reductio ad absurdum.

3. The Observations were printed and published during the lifetime of every member of the Convention, including the five members of the Committee of Detail, and Pinckney immediately republished them in the South Carolina State Gazette. In 1819 when the copy of the draught was published and circulated as a public doc.u.ment there were 16 members of the Convention still living, among whom was Madison, the chronicler of the Convention.

It must therefore be held that Pinckney did not conceal anything or shrink from investigation; and that all which he did was done in due time, in the light of day and in the most open manner. Indeed it may be asked whether there ever was an historical doc.u.ment which was so doubly published and declared both prior to and at the time when it was produced as the Pinckney draught; or which could have been so easily refuted, if it was really refutable? A court of justice in such a case would say, "The plea of fraud is sustained by no evidence whatever. To allow a doc.u.ment which was placed in the files of the Government at the instance of a high officer of State to be attacked and discredited because of the doubts and suspicions of individuals, no matter how eminent and intelligent, would be a monstrous abuse of authority which can not be upheld in either law or morals."

4. A question may be raised as to whether the Journal of Madison can properly be admitted as evidence against the claim of Pinckney; and it must be conceded that Madison occupied the position of a controversialist; that during the whole of the period of controversy his chronicle of the Convention was in his exclusive possession; and that it was within his power at any moment to obliterate parts or pa.s.sages which, coming to the knowledge of the world, would weaken his own position and vindicate Pinckney and sustain the draught. But such a suggestion against the integrity of such a man is not to be lightly entertained. It is no more to be believed without evidence (and evidence of the most clear and unequivocal character) that Madison, for his own purposes, obliterated historical evidence, than that Pinckney fabricated it. Each was a member of the Congress of the Confederation; each was a delegate to the great Convention; each was eminent for his zeal in the prolonged and often hopeless work of framing the Const.i.tution; each has left behind him a long record of distinguished public life. The one laboriously prepared the only draught of the Const.i.tution that was made for the use of the Convention; and the other laboriously prepared the only chronicle of the framers' work which the world possesses. It is not for the bitterness of controversy, heedlessly, to a.s.sail such men.

5. The Journal of Madison must be received as authentic history. At the same time it must be borne in mind that it was not written with the fulness and precision of the modern stenographer. Madison could not transcribe the words which a speaker uttered and leave us to ascertain the speaker's meaning from his words. All that such a reporter could do was to record what he believed to be the speaker's meaning. It follows that condensed pa.s.sages, isolated sentences, casual turns of expression cannot be used as admissions against Pinckney, and must be considered with disinterested caution, if they be considered at all.

Time which destroys, also discloses; and time may bring to light some record which will change the conclusions of to-day. But as the case now stands it must be said that the Pinckney Draught in the Department of State is (with the exceptions before noted), all that Pinckney represented it to be.

CHAPTER XVI

OF PINCKNEY PERSONALLY

Pinckney was in the fourth generation of a family which had been distinguished for more than one hundred years for its public services.

He had been elected to the provincial legislature of South Carolina before he had come of age; and he had made himself before the sitting of the Convention a prominent member of the Congress of the Confederated States. He had a clearer apprehension of the actual needs of American nationality than any other member of the Convention. This may be seen in his Observations and in his speech of the 25th of June. There is a pa.s.sage in that speech in which antic.i.p.ating the Farewell Address of Washington and the peace policy of Jefferson he looks forward through the ensuing century of the Const.i.tution and depicts the practical blessings which it was to bring to the American people with a clearness and accuracy that is extraordinary:

"Our true situation appears to me to be this--a new, extensive country, containing within itself the materials for forming a government capable of extending to its citizens all the blessings of civil and religious liberty--capable of making them happy at home. This is the great end of republican establishments. We mistake the object of our government, if we hope or wish that it is to make us respectable abroad. Conquests or superiority among other powers is not, or ought not ever to be, the object of republican systems. If they are sufficiently active and energetic to rescue us from contempt, and preserve our domestic happiness and security, it is all we can expect from them--it is more than almost any other government insures to its citizens."

Pinckney's experience in the Congress of the Confederation made him despise the existing Federal Government and undervalue the local authority of the States. He came into the Convention its most extreme Federalist--more so even than Hamilton. As he said in the Observations:

"In the federal councils, each State ought to have a weight in proportion to its importance; and no State is justly ent.i.tled to greater."

"The Senatorial districts into which the Union is to be divided [in his plan] will be so apportioned as to give to each its due weight, and the Senate calculated in this as it ought to be in every government, to represent the wealth of the nation."

"The next provision [in his draught] is intended to give the United States in Congress, not only a revision of the legislative acts of each State, but a negative upon all such as shall appear to them improper."

"The idea that has been so long and falsely entertained of each being a sovereign State, must be given up; for it is absurd to suppose there can be more than one sovereignty within a government."

"Upon a clear and comprehensive view of the relative situation of the Union, and its members, we shall be convinced of the policy of concentring in the federal head a complete supremacy in the affairs of government."

In the Convention Pinckney moved that the members of the lower House should be chosen by the legislatures "of the several States"; but this was the one thing which he conceded to "the several States." The Senate was to be chosen by the House of Delegates; and what is more significant, the Senate was not to represent States, with the saving clause, "Each State shall be ent.i.tled to have at least one member in the Senate." Finally he would strike an absolutely fatal blow at State sovereignty by providing, "the Legislature of the United States shall have the power to revise the Laws of the several States that may be supposed to infringe the powers exclusively delegated by this Const.i.tution to Congress, and to negative and annul such as do."

Knowing as we do of Pinckney's youth (he was not yet 30) and of Madison's poor opinion of him, it is desirable that we should know, if possible, what his contemporaries in the Convention thought of him.

William Pierce the delegate from Georgia who has left to us the anecdote of Washington before quoted (p. 230) noted at the time his impressions of the leading members of the Convention. From these I select his sketches of four of the young members of the Convention who had even then attained distinction, Edmund Randolph, Rufus King, Alexander Hamilton and Charles Pinckney:

"Mr. Randolph is Governor of Virginia--a young gentleman in whom unite all the accomplishments of the Scholar and the Statesman. He came forward with the postulata or first principles on which the Convention acted; and he supported them with a force of eloquence and reasoning that did him great honor. He has a most harmonious voice, a fine person and striking manners."

"Mr. King is a Man much distinguished for his eloquence and great parliamentary talents. He was educated in Ma.s.sachusetts, and is said to have good cla.s.sical as well as legal knowledge. He has served for three years in the Congress of the United States with great and deserved applause, and is at this time high in the confidence and approbation of his Countrymen. This Gentleman is about thirty-three years of age, about five feet ten Inches high, well formed, an handsome face, with a strong expressive Eye, and a sweet high toned voice. In his public speaking there is something peculiarly strong and rich in his expression, clear, and convincing in his arguments, rapid and irresistible at times in his eloquence but he is not always equal. His action is natural, swimming, and graceful, but there is a rudeness of manner sometimes accompanying it. But take him _tout en semble_, he may with propriety be ranked among the Luminaries of the present age."

"Col. Hamilton is deservedly celebrated for his talents. He is a pract.i.tioner of the Law, and reputed to be a finished Scholar. To a clear and strong judgment he unites the ornaments of fancy, and whilst he is able, convincing, and engaging in his eloquence the Heart and Head sympathize in approving him. Yet there is something too feeble in his voice to be equal to the strains of oratory;--it is my opinion that he is a convincing Speaker, that (than) a blazing Orator. Col. Hamilton requires time to think,--he enquires into every part of his subject with the searchings of phylosophy, and when he comes forward he comes highly charged with interesting matter, there is no skimming over the surface of a subject with him, he must sink to the bottom to see what foundation it rests on.--His language is not always equal, sometimes didactic like Bolingbroke's, at others light and tripping like Sterne's. His eloquence is not so defusive as to trifle with the senses, but he rambles just enough to strike and keep up the attention. He is about 33 years old, of small stature, and lean. His manners are tinctured with stiffness, and sometimes with a degree of vanity that is highly disagreeable."

"Mr. Charles Pinckney is a young Gentleman of the most promising talents. He is, altho' only 24 [29] y's of age, in possession of a very great variety of knowledge. Government, Law, History and Phylosophy are his favorite studies, but he is intimately acquainted with every species of polite learning, and has a spirit of application and industry beyond most Men. He speaks with neatness and perspicuity, and treats every subject as fully, without running into prolixity, as it requires. He has been a member of Congress, and served in that Body with ability and eclat." (_William Pierce of Georgia_; 3 Amer. Hist. Review, 313.)

In this materialistic world of cause and effect there sometimes seem to be recurring fatalities which attend individuals that needlessness has not caused and that foresight could not have prevented--a fate of fire or flood or shipwreck, of good fortune or of bad fortune, of successes or of casualties of escapes or of disasters--a fate that fastens upon an individual and cannot be shaken off. The fate a.s.signed to Pinckney seems to have been oblivion. Substantially everything which he prized is gone.

His house was one of the finest in Charleston, if not the finest, and it was destroyed. He believed his library to be the most valuable library in the South and his great gallery to hold the rarest pictures in this country yet but a few volumes remain of the one and but two portraits of the other. His garden was the most beautiful in the State, it was his pride, his delight, and obliteration has indeed been its portion; even the soil which bore him flowers and shrubbery and trees and was laden with all the loveliness of semi-tropical vegetation is gone; for it was carried away during the Civil War to make military defenses. At the beginning of this investigation I began to search for the papers of which Pinckney speaks in his letter to the Secretary of State--papers which might throw new light on the framing of the Const.i.tution or solve the problem of the contents of the draught. In this search General McCrady, of Charleston kindly and sympathetically co-operated, but I soon received his a.s.surance that the quest was not a new one for him, and that neither in the Historical Society of South Carolina of which he was President nor in the possession of his friends could a doc.u.ment or paper or even a letter be found. At that time I desired to obtain a specimen of Pinckney's early handwriting and accordingly carried my pursuit into the circle of his direct descendants; but the sad reply came from his great-grandson, Mr. Charles Pinckney of Claremont, South Carolina that "all of his papers and private ma.n.u.scripts were destroyed in the great fire in Charleston in 1861," and that his descendants possess "no remains of his handwriting except the autographs in his books." Letters and papers of eminent men are constantly coming to the light from unexpected hiding places and there is the official correspondence in the State Department and papers may exist in the public offices of South Carolina, but apart from these, my investigation stops at a point where it must be said that not so much as a single line of the writing of Charles Pinckney now exists.

In 1787 while Pinckney was in the full possession of his youthful power and fortune and all those things which give a man a prestige above his fellows, fate seems to have leaned forward and touched the instrument which was the supreme work of his life, the Draught of the Const.i.tution of the United States--and to have set a seal upon the lips of every man who could testify as to its contents. If ever there was a paper of which it might be predicted that it would survive its time and be securely kept, that was the paper. The Convention was composed of the most orderly, caretaking and reputable of men, and the author of the draught was one of them. The command of the Convention was that its papers should be preserved. The papers were placed in the custody of the most scrupulous of men and by him transferred to the official guardianship of a department of the Government, and there we might expect to find the draught of Pinckney; but fate had touched the great State paper, and we find only that it had vanished mysteriously from the earth.

The following biographical sketch is by Mr. Wm. S. Elliott, of South Carolina, a grand nephew of Pinckney:

"In the diploma, by which the degree of Doctor of Laws was conferred upon him by the University of Princeton, New Jersey, it is expressly declared, that it 'is conferred on account of high acquirements, learning and ability, and particularly for his distinguished services in Congress and the Federal Convention.' From 1787 to 1789, he was traveling on the Continent and on his return, was elected Governor of the State. While Governor, he was a delegate to, and made president of the State Convention for forming the Const.i.tution. In 1791 he was chosen a second time, and in 1796 a third time, Governor of the State; in 1798 a Senator in Congress, where he remained until 1801, when Mr. Jefferson appointed him Minister Plenipotentiary to Spain, with power to treat for the purchase of Louisiana and Florida. On his return in 1806, he was a fourth time honored with the position of Governor of the State, and he is the only citizen who has been so frequently elevated to the executive chair. From this period he retired from public life, until in 1818, when he was elected under great party excitement to the United States House of Representatives by Charleston District, and he here closed his political life with his speech in opposition to the Missouri Compromise.

"Family tradition and genealogical history are the very reverse of amber, which, itself a valuable substance, usually includes trifles; whereas, these trifles being in themselves very insignificant and trifling do, nevertheless, serve to perpetuate a great deal of what is rare and valuable in ancient manners, and to record many curious and minute facts, which could have been preserved and conveyed through no other medium.

"Charles Pinckney professed an exquisite appreciation of the beautiful in nature and in art. His collection of paintings, statuettes, medals, etc., rendered his house almost a museum. His fine library, occupying an entire suite of three large rooms--the floors and windows of which were kept richly carpeted and curtained, while the ceilings were decorated with cla.s.sic representations--is supposed to have contained near twenty thousand of the rarest and choicest books, collected from every part of the Continent, and in every language spoken in the enlightened world."

Thomas Pinckney, who settled in South Carolina in 1687, was the father of (2) (3) William, Thomas.

Master in Chancery.

His Son, Col. Chas. Pinckney.

His Son, Governor Charles Pinckney.

His Son, Hon. Henry L. Pinckney.

"A life of Charles Pinckney was prepared and in the possession of the Hon. Henry L. Pinckney for revision and addition; with it were his valuable papers. The fire of 1861, which desolated the city of Charleston, destroyed almost everything, and this, and the former essay, are compiled from many stray notes, mutilated ma.n.u.scripts and a few papers, still in our possession.

"A very strange and melancholy feeling overtakes us as we search the remains of Charles Pinckney. Here is a man upon whom Heaven appears to have showered its gifts. Distinguished in ancestry, possessing fine intellect, vigorous health, and large fortune, with his political ambition fully gratified, of refined tastes and cultivation, linking his name successfully and eminently, with his day and his race, and yet, here are his memorials in a few tattered bits of paper, scarcely decipherable. His ashes are in the family burying ground. The spot is known. No stone, however, marks his final resting-place. His house in Charleston years ago, pa.s.sed into the hands of the stranger, and has been torn down. The very earth has been removed, and now forms one of the fortifications of White Point Battery, erected during the late war for the defense of the city of Charleston. The library is broken and scattered. The picture of Lady Hamilton, and his own portrait, are the only two that we know of that remain of his once splendid gallery. The beautiful grounds of "FEE FARM" have disappeared, and the plough runs its furrows through the grove, and the grave-yard.". DeBow's Review, April 2, 1866.

APPENDIX